c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The Constitution provides for freedom from torture and cruel, inhuman, or degrading treatment or punishment. However, reports by several Japanese bar associations, human rights groups, and some prisoners indicate that police sometimes use physical violence, including kicking and beating, as well as psychological intimidation, to obtain confessions from suspects in custody or to enforce discipline. There were also scattered allegations of beatings of detainees in immigration detention facilities.
In Japan confession is regarded as the first step in the rehabilitative process. Although under the Constitution no criminal suspect can be compelled to make a self-incriminating confession, roughly 90 percent of all criminal cases going to trial include confessions, reflecting the priority that the system places on admissions of guilt. The Government points out that the high percentage of confessions, like the high conviction rate, is reflective of a higher standard of evidence needed to bring about indictment in the Japanese system. Since a system of arraignment does not exist, a suspect, if indicted, is brought to trial even if that person has confessed to the crime. This process results in a higher conviction rate than would otherwise be the case. There are persistant allegations of coerced confessions.
Appellate courts have overturned several convictions in recent years on the grounds that they were obtained as a result of forced confession. In addition, civil and criminal suits alleging abuse during interrogation and detention have been brought against some police and prosecution officials. In February the Osaka High Court ordered the prefectural government to pay compensation to five persons forced by police to confess to the 1979 murder of a housewife. In June following a struggle between prison guards and an inmate in Oita prison, the Fukuoka regional correction headquarters of the Justice Ministry instructed facilities within the region to prevent violence against prisoners.
Some human rights groups allege that physical restraints, such as leather handcuffs, have been used as a form of punishment and that prisoners have been forced to eat and relieve themselves unassisted while wearing these restraints. Ministry of Justice officials state that restraints are used inside the prison only when prisoners have been violent and pose a threat to themselves and others, or when there is concern that a prisoner might attempt to escape. In June the Tokyo District Court ruled that the use of metal and leather handcuffs was not a violation of the Constitution. Prison conditions meet most minimum international standards. However, prisons in Japan are not heated and prisoners are given only minimal additional clothing to protect themselves against cold weather. There have been cases of frostbite among the prison population. Many foreign inmates complain that the quantity of food is insufficient and that they are constantly hungry. Prisoners may not purchase or be given supplementary food. Letters to and from prisoners may be read and censored, or confiscated. All visits from family and friends are monitored, and prisoners are strongly discouraged from complaining about conditions. Prison officials claim the "no complaining" rule is designed to keep family members from worrying about their loved ones. The Justice Ministry usually does not inform a death-row inmate's family prior to the execution.
The Japanese Federation of Bar Associations and human rights groups have criticized the prison system, with its emphasis on strict discipline and obedience to numerous rules. Prison rules are confidential. Guards sometimes selectively enforce them and impose punishment, including "minor solitary confinement," which may be imposed for a minimum of 1 and not more than 60 days and in which the prisoner is made to sit (for foreigners) or kneel (for Japanese) motionless in the middle of an empty cell.
The Government restricts access to prisons and detention facilities by human rights groups.
d. Arbitrary Arrest, Detention, or Exile
Constitutional provisions for freedom from arbitrary arrest or imprisonment are respected in practice. The law provides for judicial determination of the legality of detention. People may not be detained without charge, and prosecuting authorities must be prepared to demonstrate before trial that probable cause exists in order to detain the accused. Under the Code of Criminal Procedure, a suspect may be held in police custody for up to 72 hours without judicial proceedings. Preindictment custody may be extended by a judge for up to 20 additional days. If an indictment follows, the suspect is transferred to a criminal detention facility. Bail is available in only about 25 percent of cases.
The bar associations and human rights groups have criticized the practice of "substitute detention." Although the law stipulates that suspects should be held in "houses of detention" between arrest and sentencing, a police detention facility may be substituted at the order of the court. This provision was originally added to cover a shortage of normal detention facilities. According to the most recent Ministry of Justice White Paper on Crime, published in 1995, normal detention facilities were filled to 53 percent of capacity in 1994. Critics charge that allowing suspects to be detained by the same authorities who interrogate them heightens the potential for abuse and coercion. The Government counters that adequate safeguards to prevent abuse, including strong judicial oversight, have been built into the system.
The length of time before a suspect is brought to trial depends on the nature of the crime but rarely exceeds 3 months from the date of arrest; the average is 1 to 2 months (see Section 1.e.). Critics charge that access to counsel is limited both in duration and frequency, although the Government denies that this is the case. The Criminal Procedure Code grants the prosecution and investigating police officials the power to control access to attorneys before indictment when deemed necessary for the sake of the investigation. As a court-appointed attorney is not approved until after indictment, suspects must rely on their own resources to hire an attorney before indictment, although local bar associations may provide detainees with a free counseling session prior to indictment. An attorney is provided at government expense after indictment if the arrested person cannot afford one. Counsel may not be present during interrogation at any time before or after indictment. With these exceptions, the Government affirms that the right of the accused to seek legal counsel is fully respected and that attorneys almost always are able to see clients without obstruction.
The Government does not use forced exile.
e. Denial of Fair Public Trial
The judiciary is independent and free from executive branch interference. The Cabinet appoints judges for 10-year terms, which can be renewed until judges reach the age of 65. Justices of the Supreme Court can serve until the age of 70 but face periodic review through popular referendum.
There are several levels of courts, high courts, district courts, family courts, and summary courts, with the Supreme Court serving as the highest judicial authority. Normally a trial begins at the district court level, and a verdict may be appealed to a high court and then to the Supreme Court.
The Government respects in practice the constitutional provisions for the right to a speedy and public trial by an impartial tribunal in all criminal cases. Although the Constitution also provides for a speedy trial and most criminal trials are completed within a reasonable length of time (see Section 1.d.), cases also may take several years to work their way through the trial and appeals process. For example, more than 3 years after the Aum Shinrikyo cult's sarin gas attack in the Tokyo subway killed 12 people, cult leader Shoko Asahara's initial trial is still under way. In March, 24 years after the death of a child and more than 20 years after court proceedings were first initiated, the Kobe District Court for the second time acquitted a former teacher accused of the child's murder. The teacher initially was indicted in 1977. The prosecution had appealed the first not-guilty verdict in 1985 and the Osaka High Court had ordered a retrial. Critics of the Kobe district public prosecutors' office, which is again appealing the verdict, note that the case has dragged on longer than the 13-year prison sentence the prosecution originally sought, and longer than the 15-year statute of limitations on murder cases.
There is no trial by jury. The defendant is informed of charges upon arrest and assured a public trial by an independent civilian court with defense counsel and the right of cross-examination. The Constitution provides defendants with the right not to be compelled to testify against themselves as well as to free and private access to counsel. The Government contends that the right to consult with attorneys is not an absolute one, and can be restricted if such restriction is compatible with the spirit of the Constitution. Access is sometimes abridged in practice. For example, the law allows prosecutors to control access to counsel before indictment, and there are persistent allegations of coerced confessions (see Section 1.c.). Defendants are protected from the retroactive application of laws and have the right of access to incriminating evidence after a formal indictment has been made. However, the law does not require full disclosure by the prosecutor, and material that the prosecution will not use in court may be suppressed. Critics claim that legal representatives of defendants do not always have access to all relevant material in the police record, needed to prepare their defense. A defendant who is dissatisfied with the decision of a trial court of first instance may, within the period prescribed by law, appeal to a higher court.
There are no guidelines mandating the acceptable quality of communications between judges, lawyers, and non-Japanese speaking defendants, although the Supreme Court publishes handbooks explaining legal procedures and terms for court interpreters. There is no standard licensing or qualification system for certifying court interpreters, and a trial may proceed even if the accused does not understand what is happening or being said. In March the Takamatsu High Court dismissed the appeal of a Thai woman convicted in 1997 of murder, ruling that the verdict and the 8-year sentence should stand despite the fact that the presiding lower court judge had not allowed the interpreter to translate the reasons for the sentence to the defendant.
Indigenous People
The Ainu are a people descended from the first inhabitants of Japan. The Ainu Association of Hokkaido estimates the total number of Ainu at 50,000, less than 0.05 percent of the country's 124 million population. Almost all live on Hokkaido, the northernmost of the country's four main islands. Their primary occupations are fishing, small-scale farming, and jobs in the tourism industry. Under an 1899 law, the Government pursued a policy of forced assimilation, imposing mandatory Japanese education and denying the Ainu their right to continue traditional practices. The law also left the Ainu with control of only approximately 0.15 percent of their original land holdings.
In 1993 two Ainu filed a suit against the Government, challenging its right to expropriate their land, which the Ainu consider sacred, to build a dam. In 1997 the Sapporo District Court ruled that the Government had illegally expropriated the land but did not order the Government to return the land to the plaintiffs because the dam had already been completed. However, the Court ruled that the Ainu were a minority aboriginal race.
Ainu Diet member Shigeru Kayano was instrumental in the Diet's passage of the Law To Promote Ainu Culture and Disseminate Knowledge of Ainu Traditions in 1997. The law officially recognized the Ainu as an ethnic minority and required all prefectural governments to develop basic programs for promoting Ainu culture and traditions. It canceled a series of previous laws that discriminated against the Ainu including the 1899 law. With the new law, the Government for the first time acknowledged the existence of an ethnic minority in the country. However, the law stopped short of recognizing the Ainu as the indigenous people of Hokkaido, and also failed to address whether they deserved special rights as a distinct ethnic group. The new law did not mandate civil rights protection for the Ainu. A nonbinding accompanying resolution referred to the Ainu as a legal Japanese minority. In July a report submitted by the U.N. Special Rapporteur to the 16th U.N. Working Group on Indigenous Populations said that the Ainu had never entered into a consensual juridical relation with any state, and stated that the lack of such an agreement deprived them of their rights. Many Ainu criticize the Law to Promote Ainu Culture for not advancing Ainu political rights and criticize the Government for not providing funds for noncultural activities that would improve Ainu living conditions or financial status.
The Ainu continue to face societal discrimination while engaging in an uphill struggle against complete assimilation. An Ainu-language newspaper was established in 1997. In April a local Hokkaido radio station began broadcasting a weekly 15-minute Ainu-language program. In July the Japan Ainu Association, a nationwide organization of Ainu, was established to lobby the Government for economic assistance and greater social welfare benefits for Ainu throughout the country.
National/Racial/Ethnic Minorities
The ethnocentric nature of Japanese society, reinforced by a high degree of cultural and ethnic homogeneity and a history of isolation from other cultures, has impeded the integration of minority groups. This primarily affects Burakumin, Koreans, and alien workers.
The Burakumin (descendants of feudal era "outcasts" who practiced "unclean" professions such as butchering and undertaking), although not subject to governmental discrimination, are frequently victims of entrenched societal discrimination, including restricted access to housing and employment opportunities. They are estimated to number approximately 3 million, but most prefer to hide their identity. Beginning in 1969, the Government introduced with some success a number of social, economic, and legal programs designed to improve conditions for the Burakumin and hasten their assimilation into mainstream society. In recent years, however, some within the Burakumin community have questioned whether assimilation is an appropriate goal. When the basic legislation to provide funding for Burakumin programs expired in 1997, the Government enacted legislation effective for 5 years that retains 15 of the original 45 programs for Burakumin communities. One of these programs is aimed at completing housing plans already in progress.
In 1997 the Buraku Liberation League rewrote its manifesto for the first time in 13 years, placing less emphasis on class struggle and more emphasis on civil rights, social welfare, and the environment. The new platform also replaced the term Burakumin (hamlet people) with Buraku Jumin (hamlet residents), to try to debunk the false concept that these people are a different race from other Japanese. The platform was adopted at a national convention.
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